TEAM CODE: A-31

1st Dr. Patangrao Kadam Memorial National Moot Court

Competition, 2023

BEFORE

THE HONOURABLE SUPREME COURT OF HINDIA

UNDER SECTION 372 OF CODE OF CRIMINAL PROCEDURE, 1973

IN THE CASE CONCERNING

ALTERING THE CHARGES U/S 302 IPC & U/S 66C OF IT ACT

AND

QUASHING THE CHARGES U/S 8(C) R/W 18(C) OF NDPS ACT,

1985
CRIMINAL APPEAL NO.- OF 2023

- IN THE MATTER BETWEEN -

STATE OF INDRAPRASTHA.......................................................(PETITIONER)

V/s.

MR. STEVE ROGERS............................................................... (RESPONDENT)

MEMORANDUM ON BEHALF OF THE PETITIONER

 MEMORANDUM for PETITIONER [TABLE OF CONTENTS]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS...............................................................................................III

INDEX OF AUTHORITIES..................................................................................................V

STATEMENT OF JURISDICTION..................................................................................VII

STATEMENT OF FACTS................................................................................................VIII

STATEMENT OF ISSUES...................................................................................................IX

SUMMARY OF ARGUMENTS............................................................................................X

ARGUMENTS ADVANCED..................................................................................................1

I. WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT OF HINDIA? ................................................................1

A. THE ACT NOWHERE COULD BE CONSIDERED AS AN ACT OF

‘INTENTIONAL’ FIRING WHICH COULD BE CONFIRMED BY ANALYSING SEC
299 AND SEC 300 OF IPC................................................................................................1

B. THE REQUIRED ESSENTIALS OF MURDER AND ATTEMPT TO MURDER

ARE NOT MET..................................................................................................................3

1. THERE WAS NO INTENTION TO CAUSE DEATH......................................3

2. CONSEQUENCE OF THE ACT WAS NOT KNOWN....................................5

II. WHETHER THE OFFENCE OF MURDER HAS BEEN MADE OUT AGAINST
MR. STEVE IN LIGHT OF THE PRESENT FACTS? ..................................................7

A. THE COMPLIANCE OF SEARCH AND SEIZURE WAS NOT FOLLOWED 7

1. THE SEARCH AND SEIZURE PROCEDURE WAS NOT DONE

ACCORDING TO THE PROVISONS OF NDPS ACT............................................7

B. THE POSSIBILITY OF EVIDENCE BEEN PLANTED CANNOT BE DENIED 12

1. THE ACT OF DIMPI PUNDIT IS UNDER SUSPICION...............................13

2. THE ACT OF POLICE IS ALSO NOT JUSTIFIABLE AND UNDER

DOUBTS......................................................................................................................13

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MEMORANDUM for PETITIONER [TABLE OF CONTENTS]

III. WHETHER THE OFFENCE OF SECTION 66C OF THE INFORMATION

TECHNOLOGY ACT, 2000 HAS BEEN MADE OUT AGAINST MR. STEVE? .....14

A. THE ACT BY MR PHOOLCHAND HAS NOT BEEN PROVED AS AN

INTENTIONAL ACT.......................................................................................................14

B. LINK BETWEEN DRUG, VEHICLE AND ACCUSED HAS NOT BEEN

ESTABLISHED................................................................................................................16

1. LINK BETWEEN VEHICLE AND ACCUSED HAS NOT BEEN

ESTABLISHED...........................................................................................................16

2. LINK BETWEEN DRUG AND ACCUSED HAS NOT BEEN

ESTABLISHED...........................................................................................................17

PRAYER.................................................................................................................................XI

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MEMORANDUM for PETITIONER [LIST OF ABBREVIATIONS]

LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORMS

¶ PARAGRAPH

¶¶ PARAGRAPHS

S. SECTION

AIR ALL INDIA REPORTER

IND. INDRAPRASTHA

ANR ANOTHER

ART ARTICLE

ARTS ARTICLES

CAL. CALCUTTA

CO. COMPANY

CPC CODE OF CIVIL PROCEDURE, 1908

ED. EDITION

ENT. ENTRY

GOVT. GOVERNMENT

HON’BLE HONOURABLE

I.E. ID EST

IBID IBIDEM

IN RE IN REFERENCE

PAGE | III
MEMORANDUM for PETITIONER [LIST OF ABBREVIATIONS]

LTD. LIMITED

M.P. MADHYA PRADESH

NO. NUMBER

ORS OTHERS

P. PAGE

PP. PAGES

PVT. PRIVATE

SC SUPREME COURT

SCC SUPREME COURT CASES

SCH. SCHEDULE

PAGE | IV
MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

CASES PAGE NO.

Abdul Waheed Khan and Ors v. State of Andhra Pradesh (2002) 7 SCC 175 4

Ali Mustafa Abdul Rahman Moosa v. State of Kerela, 1994 SCC (6) 569 12

Bhagwan Singh v. State of Uttarakhand, AIR 2020 SC 1416 15

Gopal & Ors. v. State, 2018 ALLMR (CRI) 1976 10

Karnail Singh v. State of Haryana, (2009) 8 SCC 539 10

Kesar Singh & Anr v. State of Haryana, (2008) 15 SCC 753 2

Kunwar Pal v. State of Uttarakhand, 2014 SCC 434 14

Richhpal Singh Meena v. Ghasi, 2014 AIR 2014 SC 3595 2

Sadhu Singh Haranam Singh v. The State of Pepsu, AIR 1954 SC 271 15

Shankar Narayan Bhadolkar v. State of Maharashtra, 2005 (9) SCC 71 1

Sobha Hymavathi Devi v. Setti Gangadhara Swami, 2005 SCC 244 17

State of Gujarat v. Haidarali Kalubhai, 1976 AIR 1012 6

State of Punjab v. Baldev Singh, 1994 (3) SCC 299 7

Vineet Kumar Chauhan v. State of UP, (2007) 14 SCC 660 5

Virsa Singh v. State of Punjab, AIR 1958 SC 465 1

PAGE | V
MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

STATUTES PAGE NO.

Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1973 (India) VII

Indian Evidence Act, 1872, § 101, Acts of Parliament, 1872 (India) 16

Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India) 3

Narcotic Drugs and Psychotropic Substances Act, 1985, Acts of Parliament, 8

1985 (India).

Uttar Pradesh Narcotic Drugs Rules, 1986, § 77, Gazette of Uttar 11

Pradesh, 1986 (India)

BOOKS PAGE NO.

COURTNEY STANHOPE KENNY, OUTLINE OF CRIMINAL LAW 31 (Cambridge at 3

the University Press 1942).

IYER, COMPREHENSIVE CLASSIC ON THE NARCOTIC DRUGS AND 8

PSYCHOTROPIC SUBSTANCES ACT,1985 (Delhi Law House 2020)

RA NELSON, INDIAN PENAL CODE (Lexis Nexis 2008) 1

RATANLAL & DHIRAJLAL, INDIAN PENAL CODE (Lexis Nexis 2018) 2

SC SARKAR , CRIMINAL PROCEDURE CODE (Lexis Nexis 2020) VII

PAGE | VI
MEMORANDUM for PETITIONER [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

This Criminal Appeal has been filed to this Honourable Supreme Court of Hindia with the
virtue of Section 372 of CrPC1, 1973.

Section 372 in The Code of Criminal Procedure, 1973 read as:

No appeal to lie, unless otherwise provided. No appeal shall lie from any judgment or order
of a Criminal Court except as provided for by this Code or any other law for the time being
in force.2.

1
Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1973 (India).
2
SC SARKAR , CRIMINAL PROCEDURE CODE (Lexis Nexis 2020).

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MEMORANDUM for PETITIONER [STATEMENT OF FACTS]

STATEMENT OF FACTS

BACKGROUND OF THE CASE

This case has arose out of a missing report filed by Ms. Katherine Wallance’s employer.
Ms, Katherine Wallace was in a live-in relationship with the accused Mr. Steve Roger.
They used to have repeated scuffles and everytime Mr. Steve used to hit her.
The Police after discovering the footage of a man resembling similar to Mr. Steve walking
down the adjoining road to the forest with a black hood, black bag and silver colour
headphones with W mark in dashcam of an abandoned car after searching him they found
similar headphones but w mark was missing in it. In the Narco test he narrated that on the
fight between him and Ms. Katherine he hit her head and choked her Neck and after she became
unconscious he left the house and rented a place in ziffy and after returning back a month he
found the dead body of Ms. Katherine in an electronic Almirah which can’t be opened from
inside that is evident that Ms. Katherine locked her inside out of fear of him and unfortunately
could not came out and died. He also told the Police about dismembering the body of Ms.
Katherine and disposing them in forest but never admitted for her murder. While searching the
forest police found a femur and in the forensic test it was shown to belong to a woman of 30-35
years of age.
This case also stretches its limbs to act of impersonation in which Mr. Steve acted as Ms.
Katherine and used to talk with her friends on social media to show that she was alive. In this
Mr. Steve has been acquitted by the High court on lack of evidence. This appeal has been filed
challenging the decision of high court of Indraprastha before the supreme court.

__________CONTENTION OF PROSECUTION___________

Prosecution claims that this is an intentional act done by Mr. Steve where he deliberately hit
her with fry pan on her head and choked her neck till she fell unconscious that was sufficient
to cause her death after doing so he left the house for a month and returned to check only if
she was alive or not and actively chopped the body into pieces They have also tried to bring
out the recovery of bone along with the fry pan and refrigerator is incriminating because the
element of criminality lies in the authorship of the concealment.

The Prosecution also claims that the act of impersonation and the inconsistent statement at
the moment points out to the guilt of steve.
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MEMORANDUM for PETITIONER [STATEMENT OF FACTS]
CONTENTION OF DEFENCE

The Defence claims that there is no proof as to the cause or the method and manner in which
the dead body of Ms. Katherine was dealt with and disposed of. It has been argued that
whether death is accidental and the accused has acted in a particular manner regarding the
disposal of the dead body.

Now if the murder has not been proved against Steve there remains no dishonest or
fraudulent intent to act of impersonation and in the absence of any dishonest or fraudulent
motive, an offence under Section 66C of IT Act is not made out.

REASON FOR APPEAL _

The Appellate are aggravated with the decision of high court of Indraprastha ruling in favour
of Mr. Steve set aside the conviction for lack of evidence. The appellate want to convict him
u/s 302 , 335 ,307 , 204 and 307 of Indian Penal Code 1860 and section 66C of the
Information Technology Act 2000 of Hindia.

PAGE | IX
MEMORANDUM for PETITIONER [STATEMENT OF ISSUES]

STATEMENT OF ISSUES

ISSUE: [I]

WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF HINDIA?

ISSUE: [II]

WHETHER THE OFFENCE OF MURDER HAS BEEN MADE OUT AGAINST MR.
STEVE IN LIGHT OF THE PRESENT FACTS?

ISSUE: [III]

WHETHER THE OFFENCE OF SECTION 66C OF THE INFORMATION

TECHNOLOGY ACT, 2000 HAS BEEN MADE OUT AGAINST MR. STEVE?

PAGE | X
 MEMORANDUM for PETITIONER [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE [I]: WHETHER THE PRESENT APPEAL IS MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT OF HINDIA?

It is humbly submitted before this Honourable Court that Mr. Phoolchand Tripathi cannot be
made liable u/s 302 and 307 of IPC as the required ingredients of this section has not been
fulfilled. It is also contended that this act was done in a rash and negligent manner and hence
no case of murder and attempt can be made out.

However, this could be considered as the case of negligent act u/s 304 A of IPC.

ISSUE [II]: WHETHER PHOOLCHAND AND SUBODH CAN BE MADE LIABLE

UNDER SECTION 8(c) r/w 18(c) of NDPS?

It is humbly submitted before this court that Phoolchand and Subodh can’t be made liable
under the given provisions. It is so contended because there are lots of loopholes in the
findings and investigation of Police. There is non-compliance of provisions of NDPS. The
procedure of search, seizure and arrest as enshrined under section 42, 43 has not been
followed. The circumstances also says that possibility of evidence been planted cannot be
denied.

ISSUE [III]: WHETHER THE GUILT HAS BEEN PROVED BEYOND

REASONABLE DOUBT?

It is humbly submitted before this honourable court that prosecution has severely failed to
prove the guilt beyond reasonable doubt because the prosecution has not established that it
was an intentional firing done by Mr. Phoolchand which was done to kill him. The deposition
of defence witness also confirms that Phoolchand was in the state of intoxication and he
didn’t aimed at Luxman. The prosecution has also failed to prove the connection between
drug, vehicle and accused. It has also not been established that the vehicle belonged to
Phoolchand in which case the accused must be given benefit of doubt.

PAGE |
XI
MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

I. WHETHER PHOOLCHAND CAN BE HELD LIABLE UNDER

SECTION 302 AND 307 OF IPC, 1860?

(¶ 1.) It is humbly submitted before this honourable court that the accused cannot be made
liable under section 302 and as: [A] The Act Nowhere Could Be Considered as an act of
‘Intentional’ firing which could be confirmed by analysing Sec 299 And Sec 300 Of IPC; and
[B] The Required Essentials of Murder And Attempt to Murder are not Met.

A. THE ACT NOWHERE COULD BE CONSIDERED AS AN ACT OF

‘INTENTIONAL’ FIRING WHICH COULD BE CONFIRMED BY

ANALYSING SEC 299 AND SEC 300 OF IPC

(¶ 2.) It is humbly submitted that this Court needs to make a distinction between the
intentional death and death caused due to negligence. The culpable homicide referred in
section 299 of IPC becomes murder if it satisfies the requirements of four clauses of section
300 of IPC and even if satisfies four clauses then again it may be reduced to culpable
homicide not amounting to murder if the facts attract any of the exceptions of the section 300
of IPC3. As said in the case of Virsa Singh vs State Of Punjab4 “If an injury is inflicted with
the knowledge and intention that it is likely to cause death, but with no intention to cause
death the offence would fall within the definition of Section 304-I, however, if there is no
intention to cause such an injury, but there is knowledge that such an injury can cause death,
the offence would fall within the definition of Section 304-II. Thus, is intention. If intention
to cause such an injury as is likely to cause death, is established, the offence would fall under
Part-I but where no such intention is established and only knowledge that the injury is likely
to cause death, it would fall under Part-II.” The learned Judge explained the third ingredient
in the case of Shankar Narayan Bhadolkar vs State Of Maharashtra.5 “The question is not
whether the prisoner intended to inflict a serious injury or a trivial one but whether he
intended to inflict the injury that is proved to be present. If he can show that he did not, or if
the totality of the circumstances justify such an inference, then of course, the intent that the
section requires is not proved. The Apex Court in the case of Kesar Singh & Anr vs State of
3
RA NELSON, INDIAN PENAL CODE (Lexis Nexis 2008).
4
Virsa Singh v. State of Punjab, AIR 1958 SC 465.
5
Shankar Narayan Bhadolkar v. State of Maharashtra, 2005 (9) SCC 71.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

Haryana6 laid down a beautiful observation. It was said that the intention that the section
requires must be related, not only to the bodily injury inflicted, but also to the clause, “and
the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death.”

(¶ 3.) It is humbly submitted this court needs to look over the section 304A of IPC that deals
with those cases where death of a person takes place by committing rash and Negligent act
and not such acts as would constitute the offence of culpable homicide not amounting to
murder. Whether a particular act amounts to culpable homicide or not such an act must
necessarily fall either in Section 299 or in Section 300 of the IPC.

(¶ 4.) In the case of Richhpal Singh Meena V. Ghasi7 the Apex Court drew the concept of
five step inquiry in the cases where death is alleged to be caused by a person. In which the
court drew out the procedure to segregate the culpable homicide (amounting to murder or not
amounting to murder) and not a culpable homicide where case under section 304A of IPC is
made out.

(¶ 5.) There is much requirement to visit the Section 299 of IPC8,1860. Culpable homicide.
— Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits the offence of culpable homicide.

(¶ 6.) Analyzing this section, we realise this been broken into three parts in which the first
two parts has intention as dominating factor whereas in the third part knowledge is the
dominating factor. The first two parts deal with the intention of causing death or such bodily
injury as is likely to cause death while the third part deals with the knowledge that is was
likely to cause death.9

(¶ 7.) It would be important to know the difference as “likely” would mean probably and
not possibly when an intended injury will likely to cause death the same would mean an
injury which is sufficient in ordinary cause of nature to cause death which in turn would
mean that death will be the most probable result.10

6
Kesar Singh & Anr v. State of Haryana, (2008) 15 SCC 753.
7
Richhpal Singh Meena v. Ghasi, 2014 AIR 2014 SC 3595.
8
Indian Penal Code, 1860, § 299, No. 45, Acts of Parliament, 1860 (India).
9
RATANLAL & DHIRAJLAL, INDIAN PENAL CODE (Lexis Nexis 2018).
10
Id.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

(¶ 8.) Analyzing the Illustration C of this section which says A, by shooting at a fowl with
intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here,
although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not
intend to kill B, or to cause death by doing an act that he knew was likely to cause death.
Drawing an analogy from the present illustration a celebratory firing done in the air caused
the unintentional death of the Laxman Pandit.

B. THE REQUIRED ESSENTIALS OF MURDER AND ATTEMPT TO

MURDER ARE NOT MET

11
(¶ 9.) Murder defined under section 300 IPC ,1860 Murder. — Except in the cases
hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or—

(Secondly) —If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or—

(Thirdly) —If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or—

(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.

(¶ 10.) It could be understood from the above definition as a settled principal of law that to
bring an act punishable under this section it must firstly be brought under Section 299
IPC,1860 with few exceptions. In the other words it could be called that culpable homicide is
genus while murder is species.

1. THERE WAS NO INTENTION TO CAUSE DEATH

(¶ 11.) Kenny in his book12 has observed: Intention: To intend is to have in mind a fixed
purpose to reach a desire objective; the noun `intention' in the present connection is used to
denote the state of mind of a man who not only foresees but also desires the possible
consequences of his conduct. Thus, if one man throws another from a high tower or cuts off

11
Indian Penal Code, 1860, § 300, No. 45, Acts of Parliament, 1860 (India).
12
COURTNEY STANHOPE KENNY, OUTLINE OF CRIMINAL LAW 31 (Cambridge at the University Press 1942).

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

his head it would seem plain that the both foresees the victim's death and also desires it: the
desire and the foresight will also be the same if a person knowingly leaves a helpless invalid
or infant without nourishment or other necessary support until death supervenes. It will be
noted that there cannot be intention unless there is also foresight, since a man must decide to
his own satisfaction, and accordingly must foresee, that to which his express purpose is
directed.

(¶ 12.) It is humbly submitted that it has been a prevailing culture in the rural areas of
northern Uttar Pradesh that celebratory firing is seen as a sign of honour in such marriage
ceremonies. We the councils nowhere pleads that there was no firing at the spot also we do
not deny the fact that this firing was done by Mr. Phoolchand Tripathi the prime accused of
this case but My Lords shall analyze the fact that a person in a heavily drunken state has no
knowledge of the act which is been done by him at that particular moment. In a prudent
situation it is also presumed in a drunken state the person who does not have control over his
body and mind can aim his shots at the deceased. It is humbly submitted that it has nowhere
been proved that the firing was done directly towards the deceased. There was no prior
enmity between appellant and deceased nor any motive for the commission of the murder.
Section 299 of the IPC defines culpable homicide.

(¶ 13.) From a careful reading of the said definition, it is evident that an offence of culpable
homicide is committed if death is caused by an act with the intention of causing death or with
the intention of causing such bodily injury as is likely to cause death, or with the knowledge
that the offender is likely by such act to cause death. Section 300 IPC,1860 defines murder
and sets out the situations in which culpable homicide will amount to murder except in cases
covered by five exceptions to the said provision.

(¶ 14.) In the case of Abdul Waheed Khan and Ors V State of Andhra Pradesh,13 the Apex
Court said culpable homicide is murder, if both the following conditions are satisfied: i.e. (a)
that the act which causes death is done with the intention of causing death or is done with the
intention of causing a bodily injury; and (b) that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death. It must be proved that there was an
intention to inflict that particular bodily injury which, in the ordinary course of nature, was
sufficient to cause death, viz., that the injury found to be present was the injury that was
intended to be inflicted. The short question that all the same needs to be examined is whether
the appellant's act of causing death of the deceased tantamount to an offence of murder as
13
Abdul Waheed Khan and Ors v. State of Andhra Pradesh, (2002) 7 SCC 175.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

held by the Trial Court or any lesser offence. Both sections 299 IPC and 300 IPC provide for
situations in which death is caused by an act with the intention of causing death or with the
intention of causing such bodily injury as the offender knows to be likely to cause death of
the person to whom the harm is caused.
14
(¶ 15.) In the case of Vineet Kumar Chauhan vs State of UP the Apex Court altered the
charge of 302 IPC, stating it stands proved that there being a direct causal connection
between the hitting of the bullet, fired by the appellant, to the deceased and her death, the
death of the deceased was caused by the appellant. However, having regard to the
circumstances, briefly enumerated in the case, particularly the manner in which the appellant
fired the shots, in court’s view, the appellant could not be attributed the mens rea requisite for
bringing the case under clause (3) of Section 300 IPC,1860.

(¶ 16.) Concededly, there was no enmity between the parties and there is no allegation of the
prosecution that before the occurrence, the appellant had pre-meditated the crime of murder.
It is humbly submitted that the accused was firing in the air which can nowhere be however
related with the intention the causing death. It was mere a celebratory firing but the case has
been twisted and molded by the state that it has caused a severe miscarriage of justice. It is
also submitted that the bullets unfortunately hit the deceased as a slight carelessness arose
while dancing to tunes being played by the band in the marriage procession.

2. CONSEQUENCE OF THE ACT WAS NOT KNOWN

(¶ 17.) It is humbly submitted that the learned trial court has fallen in error in holding that the
appellants case fell under fourthly of Section 300 of IPC,1860. It is contended that the
circumstances in which the incident has taken place clearly suggest that there was neither any
intention nor the knowledge requisite for conviction to be made under Section 302 of
IPC,1860.

(¶ 18.) The facts and circumstances of the present case do not suggest any intention on the
part of the appellant to cause the death of the deceased. Reading Sections 299 and 300 in
juxta position would make it clear that there is a significant difference in the language
employed in the two provisions in so far as they refer to the knowledge of the offender
regarding the nature of the act and the extent of the danger implicit in the same. In Section
299, the words used are “with the knowledge that he is likely by such act to cause death”. In
Section 300 fourthly which deals with cases where the offence comprises knowledge of the

14
Vineet Kumar Chauhan v. State of UP, (2007) 14 SCC 660.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

offender, the words used are “if the person committing the act knows that it is so imminently
dangerous that it must in all probability cause death or such bodily injury as is likely to
cause death.” There is, therefore, a marked difference in the language employed in the two
provisions.

(¶ 19.) The difference lies in the nature of the act and the likelihood of its causing death. In
the case of an offence under Section 299, what is required is that the offender had the
knowledge that he is likely by such act to cause death regardless whether or not the act is so
imminently dangerous that it must, in all probability, cause death. Under Section 300,
culpable homicide is murder only if the offender knew that his act is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as was likely to
cause death. Illustration ‘D’ appearing under section 300 of the IPC sufficiently indicates the
kind of acts qua which the offender will be presumed to know that the same is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to
cause death.

(¶ 20.) In the case of State of Gujarat V. Haiderali Kalubhai15 it was held that section 304-A
by its own definition totally excludes the ingredients of Section 299 or Section 300 IPC.
Doing an act with the intent to kill a person or knowledge that doing of an act was likely to
cause a person's death are ingredients of the offence of culpable homicide. When intent or
knowledge as described above is the direct motivating force of the act complained of, Section
304-A has to make room for the graver and more serious charge of culpable homicide.
Drawing a similar analogy with the present case we can see that the knowledge of this act
was not known to the accused. He, being in the drunken state had no knowledge that his act is
imminently dangerous and it may cause a misfortune.

(¶ 21.) Under Section 304A of IPC16 causing death by negligence. — Whoever causes the
death of any person by doing any rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.

(¶ 22.) Analyzing the above law we come to conclusion that this incident of firing can
nowhere be conclusively said as a homicidal firing rather this celebratory firing should be
considered as negligent firing in which death has been caused due to the negligent and rash
behavior of accused.

15
State of Gujarat v. Haidarali Kalubhai, 1976 AIR 1012.
16
Indian Penal Code, 1860, § 304A, No. 45, Acts of Parliament, 1860 (India).

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

(¶ 23.) Appellant in best of his knowledge fired the gun shot in the air which according to
him was an unharmful act which does not endangered anyone’s life. Therefore, knowledge
that act was likely to cause death could not be attributed to him and in the turn an essential
requirement for an offence under Section 299 or 300 of IPC was missing. Also, from the
statement of the investigative officer Sahil Roy it is much evident that the firing was
celebratory in nature and was done towards air. Hence, corroborating the facts, circumstances
and the law it can be straight forward understood that the act was neither intentional nor did
the accused had the knowledge of his act. Hence, it is pleaded that section 302 and 307 must
be levied of as the basic requirements has not been fulfilled. Rather we humbly submit to this
hon’ble court to consider this act as a rash and negligent act on the part of the accused.

II. WHETHER PHOOLCHAND AND SUBODH CAN BE MADE LIABLE

UNDER SECTION 8(C) R/W 18(C) OF NDPS?

(¶ 24.) It is humbly submitted before this honourable court that accused cannot be made
liable under the said section as: [A] The Compliance of Search and Seizure was not
Followed; and [B] The possibility of evidence been planted cannot be denied.

A. THE COMPLIANCE OF SEARCH AND SEIZURE WAS NOT

FOLLOWED

(¶ 25.) It is humbly submitted that the contraband discovered from the thar jeep is nowhere
related with the accused. Also, the procedure in which the search and seizure was done has
got no grounds under the law to make it as substantive evidence. The search and seizure were
done in an illegal way which has broken the established principal of law. The entire process
of investigation has been curtailed down. Sealing of the contraband material was not done
according to the provisions of NDPS. In the case of State of Punjab vs Baldev Singh17 the
Apex Court held that in the cases of NDPS, while conducting search and seizure, in addition
to the safeguards provided under the Criminal Procedure Code 18, the safeguards provided
under the NDPS Act are also required to be followed.

1. THE SEARCH AND SEIZURE PROCEDURE WAS NOT DONE

ACCORDING TO THE PROVISONS OF NDPS ACT.

17
State of Punjab v. Baldev Singh, 1994 (3) SCC 299.
18
Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1973 (India).
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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

(¶ 26.) The search and seizure procedure in cases of NDPS has been enumerated under
Section 42, 43 of NDPS Act whereas with the effect of Section 44 of NDPS opium poppy are
also included.19

42. Power of entry, search, seizure and arrest without warrant or authorisation 20. — (l)
Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the
departments of central excise, narcotics, customs, revenue intelligence or any other
department of the Central Government including para-military forces or armed forces as is
empowered in this behalf by general or special order by the Central Government, or any
such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue,
drugs control, excise, police or any other department of a State Government as is
empowered in this behalf by general or special order of the State Government, if he has
reason to believe from personal knowledge or information given by any person and taken
down in writing that any narcotic drug, or psychotropic substance, or controlled substance in
respect of which an offence punishable under this Act has been committed or any document
or other article which may furnish evidence of the commission of such offence or any
illegally acquired property or any document or other article which may furnish evidence of
holding any illegally acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed
place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any
other article and any animal or conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article which he has reason to believe
may furnish evidence of the commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to
believe to have committed any offence punishable under this Act:

19
IYER, COMPREHENSIVE CLASSIC ON THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT,1985
(Delhi Law House 2020).
20
Narcotic Drugs and Psychotropic Substances Act, 1985, § 42, Acts of Parliament, 1985 (India).

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

Provided that in respect of holder of a license for manufacture of manufactured drugs or

psychotropic substances or controlled substances granted under this Act or any rule or order
made thereunder, such power shall be exercised by an officer not below the rank of sub-
inspector: Provided further that if such officer has reason to believe that a search warrant or
authorization cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset and sunrise after recording the
grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records
grounds for his belief under the proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior.

43. Power of seizure and arrest in public place 21. — Any officer of any of the departments
mentioned in section 42 may—

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or
controlled substance in respect of which he has reason to believe an offence punishable
under this Act has been committed, and, along with such drug or substance, any animal or
conveyance or article liable to confiscation under this Act, any document or other article
which he has reason to believe may furnish evidence of the commission of an offence
punishable under this Act or any document or other article which may furnish evidence of
holding any illegally acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act;

(b) detain and search any person whom he has reason to believe to have committed an
offence punishable under this Act, and if such person has any narcotic drug or psychotropic
substance or controlled substance in his possession and such possession appears to him to be
unlawful, arrest him and any other person in his company.

Explanation.— For the purposes of this section, the expression “public place” includes any
public conveyance, hotel, shop, or other place intended for use by, or accessible to, the
public.]

44. Power of entry, search, seizure and arrest in offences relating to coca plant, opium
poppy and cannabis plant.22— The provisions of sections 41, 42 and 43, shall so far as may

21
Narcotic Drugs and Psychotropic Substances Act, 1985, § 43, Acts of Parliament, 1985 (India).
22
Id.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

be, apply in relation to the offence punishable under Chapter IV and relating to coca plant,
the opium poppy or cannabis plant and for this purpose references in those sections to
narcotic drugs, or psychotropic substance 2 [or controlled substance], shall be construed as
including references to coca plant, the opium poppy and cannabis plant.

(¶ 27.) With the virtue of these stated laws, it is well settled principle that in cases of NDPS
an ‘independent’ and ‘empowered’ officer shall only conduct the procedure of search and
seizure. While in the present case we see search and seizure procedure was conducted by Mr.
Pankaj Tripathi , who is a Sub Inspector at Central Police station , where we know that
section 42 (1) of NDPS clearly mentions who is an authorised officer. So, it is well settled
that Sub - Inspector cannot be considered as an empowered officer. The importance of
compliance of this provision has also been known from the different precedents in which
our courts have considered the compliance of these provisions as compulsory and stringent.

(¶ 28.) In the case of Gopal & Ors vs State,23 Rajasthan High Court allowed a petition and
quashed the charges against appellant. The court stated “The powers as enumerated under the
NDPS Act empowered the officers of the State Government and Central Government are
specific and ought to be strictly construed. This Court has seen the precedent law in various
judgments, whereby it has been held that such powers ought to be exercised in a strict sense.
Even if the proceedings are completed by the learned court below then also the same shall be
vitiated on account of not following the provision of Section 42 of NDPS Act. It has been
noticed in the precedent law that any proceedings not in conformity with Section 42 of the
NDPS Act was per se illegal and would vitiate the trial and, therefore, any argument could
not be called to support the proceedings”.

(¶ 29.) In the case here it is much evident that Dimpi has mentioned at the Police station that
she suspects that there are two bags of drugs present in the Jeep, knowing this fact, still the
police did not mind to comply with the provisions of NDPS act. In the case of Karnail Singh
vs. State of Haryana24 A Constitution Bench of Supreme Court held, if the information was
received when the police officer was in the police station with sufficient time to take action,
and if the police officer fails to record in writing the information received, or fails to send a
copy thereof, to the official superior, then it will be a suspicious circumstance being a clear
violation of Section 42 of the Act. Similarly, where the police officer does not record the
information at all, and does not inform the official superior at all, then also it will be a clear

23
Gopal & Ors. v. State, 2018 ALLMR (CRI) 1976.
24
Karnail Singh v. State of Haryana, (2009) 8 SCC 539.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

violation of Section 42 of the Act. Since the mandatory provisions has not been followed so
they cannot be presumed in the possession of drug as mentioned in the Section 54 that it is
very much essential to follow the procedures mentioned under Section 50 of NDPS.

Section 54. Presumption from possession of illicit articles 25.—In trials under this Act, it
may be presumed, unless and until the contrary is proved, that the accused has committed an
offence under this Act in respect of—

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has
cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the
manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic
drug or psychotropic substance or controlled substance, or any residue left of the materials
from which any narcotic drug or psychotropic substance or controlled substance has been
manufactured, for the possession of which he fails to account satisfactorily.

Section 50.Conditions under which search of persons shall be conducted 26.— (1) When
any officer duly authorized under section 42 is about to search any person under the
provisions of section 41, section 42 or section 43, he shall, if such person so requires, take
such person without unnecessary delay to nearest Gazetted Officer of any of the departments
mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring
him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if
he sees no reasonable ground for search, forthwith discharge the person but otherwise shall
direct that search be made.

(4) No female shall be searched by anyone excepting a female

(5) When an officer duly authorised under section 42 has reason to believe that it is not
possible to take the person to be searched to the nearest Gazetted Officer or Magistrate
without the possibility of the person to be searched parting with possession of any narcotic

25
Narcotic Drugs and Psychotropic Substances Act, 1985, § 54, Acts of Parliament, 1985 (India).
26
Id.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

drug or psychotropic substance, or controlled substance or article or document, he may,

instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to
search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2
of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for
such belief which necessitated such search and within seventy-two hours send a copy thereof
to his immediate official superior.]

Section 77 of the U.P. Narcotic Drugs Rules, 198627 Power of entry, search, seizure and
arrest without warrant or authorisation. - Any Officer of the Excise or Police Department
not below the rank of Inspector or of the Drug Control Department not below the rank of
Inspector or of the Revenue Department not below the rank of Tahsildar may exercise the
powers under Section 42 of the Act.

(¶ 30.) This principle has also been laid down in the case of State of Punjab vs Baldev
Singh,28 where the Apex Court said “A presumption under Section 54 of the Act can only be
raised after the prosecution has established that the accused was found to be in possession of
the contraband in a search conducted in accordance with the mandate of Section 50. An
illegal search cannot entitle the prosecution to raise a presumption Section 54 of this Act. In
the case of State Of Punjab vs Balbir Singh 29 The Court expressly held the provisions of
Section 50 to be mandatory, the non-compliance whereof would vitiate the conviction.
Deciding upon a similar case in Ali Mustafa Abdul Rahman Moosa vs State Of Kerala 30
Supreme Court said we hold that there has been violation of the provisions of Section 50 of
NDPS Act and consequently the conviction of the appellant cannot be sustained.

B. THE POSSIBILITY OF EVIDENCE BEEN PLANTED CANNOT BE

DENIED

(¶ 31.) It is humbly submitted before this honourable court that facts and circumstances in
which this case has been proceeded right from the reporting of this case till search, seizure
and investigation of this case, it is been evident that there are vacuum of doubts in this which
has raised a question mark on transparency of this case. In this case the timing of event which
has happened has great role to play indeed. At 9.30 PM, her brother was shot dead and an

27
Uttar Pradesh Narcotic Drugs Rules, 1986, § 77, Gazette of Uttar Pradesh, 1986 (India).
28
State of Punjab v. Baldev Singh, 1994 (3) SCC 299.
29
State of Punjab v.Balbir Singh, 1994 SCC (3) 299.
30
Ali Mustafa Abdul Rahman Moosa v. State of Kerela, 1994 SCC (6) 569.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

FIR was launched against the said accused in this case at 11.30 PM. A delay of two hours
was done for reporting of the case. This delay is indeed unexplained and a big question mark.
Next, while reporting to police , it was stated by Dimpi Pundit that she has seen Jeep of Mr.
Phoolchand in which she has seen two bags kept. She suspected that the two bags contained
some form of drug. She also said that weights of the bags are around 10 Kgs each.

1. THE ACT OF DIMPI PUNDIT IS UNDER SUSPICION

(¶ 32.) This act of Dimpi is under a clouds of doubt because:

i. After the unfortunate incident of her brother’s death instead of calling the ambulance
and rushing towards the hospital, they found it convenient to report it to police.

ii. A incident when there is a spread of grief all around the family, Miss Dimpy found
the Jeep of Mr. Phoolchand there and she actually mind to investigate it.

iii. The weight said by Miss Dimpi is exactly the weight which has been recovered. How
can a normal person without having the prior knowledge of the quantity assumes the
quantity so perfectly.

iv. She has also suspected that the materials inside the bags are drug which means, she
actually opened the bag to have a inspection of it, which proves the point that there is
a very high chance of tampering with the evidences.

2. THE ACT OF POLICE IS ALSO NOT JUSTIFIABLE AND UNDER

DOUBTS
(¶ 33.) The police investigation is also under a great suspicion as:

i. Police had the prior knowledge that there is chance recovery of drug but still an
unempowered officer did the search, seizure procedure which vitiates the whole
investigation process.

ii. There is a delay of 2 days in sending the samples for the investigation, which again is
unexplainable. Where there are guidelines of court that every provision must be
strictly followed, the police on the other hand firstly violates the provisions and
guidelines and again after that there is a delay of 2 days in sending the samples to
laboratory.

iii. This may again prove that there could be tampering with the evidences.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

iv. This Jeep was found in the Village and there was marriage procession, which clearly
establishes that many people were present at the scene . Still, the police has failed to
bring out any civil witness which could prove the case

v. There is also no civil witness who has deposed to prove that the contrabands where
recovered from the vehicle. This clearly shatters down the argument of prosecution to
establish that contrabands belong to the accused.

(¶ 34.) In the light of the above arguments it is pleaded before the honorable court that there
is existence of insufficient evidence to prove that the contrabands belonged to the accused.
The facts and circumstances prove that the accused has been falsely implicated in this case
and the charges shall be quashed and in the absence of sufficient evidences, benefit of doubt
shall be given to the accused.

III. WHETHER THE GUILT HAS BEEN PROVED BEYOND

REASONABLE DOUBT?

(¶ 35.) It is humbly submitted before this hon’ble court that prosecution has failed to prove
the guilt beyond reasonable doubt as: [A] The Act by Mr Phoolchand Has Not Been Proved
as an Intentional Act; and [B] Link between Drug, Vehicle and Accused Has Not Been
Established.

A. THE ACT BY MR PHOOLCHAND HAS NOT BEEN PROVED AS AN

INTENTIONAL ACT
(¶ 36.) It is humbly submitted before this honourable court that in the light of the facts and
circumstances of the present case, where a firing was done in a negligent manner and
unfortunate death has been caused the contention of prosecution of intentional murder cannot
be considered and should found no grounds to stand in this court of law. It is submitted that
this misfortune happened just in the joy and the offender was in the state of intoxication.
While in the state of intoxication and dancing it is much evident that there may be any kind of
jerk because of which the mouth of gun must have been tilted towards the deceased.
However this never proves that the gun was actually targeted towards the deceased. This is a
case of celebratory firing which unfortunately caused unintentional death of Luxman Pundit.
It is not ‘culpable homicide’ because the appellant had, while firing, no knowledge that the
act was likely to cause death. It is contended that such an act amounts to negligence of the
nature as defined under Section 304A, IPC,1860.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

(¶ 37.) In the case of Kunwar Pal Singh vs State of Uttarakhand,31 while dealing with
similar case of celebratory firing , the court dismissed the argument that the offender had
intention to kill the deceased stating “In these circumstances, we find that the intention of the
appellant to kill the deceased, if any, has not been proved beyond a reasonable doubt and in
any case the appellant is entitled to the benefit of doubt which is prominent in this case. It is
not possible therefore to sustain the sentence under Section 304 Part I of the IPC, which
requires that the act by which death is caused, must be done with the intention of causing
death or with the intention of causing such bodily injury as is likely to cause death”.

(¶ 38.) In the case of Bhagwan Singh vs State of Uttarakhand,32 dealing with a similar case
of celebratory firing the Apex Court quashed the charges of Section 302 and admitted that in
such cases no intention on the part of offender was drawn. In the same case, court also
rejected the contention of High court and the lower court who considered this case as bad as
firing in the crowd.

(¶ 39.) It is also submitted before this court that Mr. Kushal Awasthi (DW-1) , Mr. Parth
Srivastava (DW-2) and Moin Zada (DW-3) deposed very clearly that Phoolchand did not aim
his gun at Luxman Pundit and that Phoolchand was in drunken state, happily singing and
dancing there.

(¶ 40.) Dimpi Pundit (PW-1) and Ram Pundit (PW-2) though, deposed that Phoolchand did
aimed his gun towards Luxman Pundit. But it is very necessary to scrutinize this deposition.
As it is mentioned that they stood next to horse on which the deceased was sitting but there is
no mentioning of what their actual position was, where they were actually facing. It is also a
matter of fact that whether they actually saw him firing or they are just relying on the sound
of fire and just because they have fired and the misfortune has happened so it must be
considered that passing the ball in the accused case is very normal. Hence for this reasoning
it is very necessary to have the scrutinization of their deposition. In the case of Sadhu Singh
Harnam Singh vs The State Of Pepsu33 while dealing with similar case of intoxication
where offender shot the deceased the Apex Court held,

“We are therefore of the opinion that the High Court was clearly in error in holding that the
accused was guilty of the offence of murder under Section 302, I.P.C. On the materials
placed on the record it could not be held proved that he had any intention of firing at the

31
Kunwar Pal v. State of Uttarakhand, 2014 SCC 434.
32
Bhagwan Singh v. State of Uttarakhand, AIR 2020 SC 1416.
33
Sadhu Singh Haranam Singh v. The State of Pepsu, AIR 1954 SC 271.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of
intoxication in order to see that by the gun fire the Mahant was prevented from leaving his
place. It was a wholly rash and negligent act on his part or at the worst was an act which
would amount to manslaughter. It could not be held to constitute an offence of murder. No
intention of causing death or an intention of causing such bodily injury as being sufficient in
the ordinary course of nature to cause death could be ascribed to the accused or readily
inferred in the circumstances of this case.”

B. LINK BETWEEN DRUG, VEHICLE AND ACCUSED HAS NOT BEEN

ESTABLISHED.

1. LINK BETWEEN VEHICLE AND ACCUSED HAS NOT BEEN

ESTABLISHED
(¶ 41.) It is humbly submitted before this Court that prosecution has severely failed to
establish the relation of accused with vehicle and drugs recovered from that. The police and
Dimpi claims that they have recovered the drugs from a “Thar” jeep , but they have failed to
establish the ownership of that Jeep that whether that Jeep actually belonged to the accused.
Though the Jeep was unregistered and carried no number plate and only a title, so here two
prominent questions arise:

i. Whether police has actually investigated the Jeep as there are many more ways in
which the actual owner of that Jeep could be reached for example by investigating on
the Chassis Number, engine number , model number etc.

ii. Whether on this Jeep the same slogan was put on as ‘Bahubali of Mirzapur’ which is
the actual slogan which is the actual slogan that Mr Phoolchand keeps, and even if
that was the slogan was the Jeep and slogan were under the ownership of Mr.
Phoolchand.

(¶ 42.) It becomes a matter of law that prosecution needs to prove these points as by the
virtue of Section 101 of Indian Evidence Act,1872 the burden of proof now lies on the
prosecution to prove the accusations that they have put on the accused.

Section 10134. Burden of proof. — Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts, must prove that

34
Indian Evidence Act, 1872, § 101, Acts of Parliament, 1872 (India).

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

those facts exist. When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.

2. LINK BETWEEN DRUG AND ACCUSED HAS NOT BEEN

ESTABLISHED
(¶ 43.) It is humbly submitted before this Honourable Court that with the virtue of my
submission laid down in issue 2 and issue 3.2.1 it is much evident that no case is being made
against Phoolchand and Subodh. The Police has severely failed to follow the procedure of
search, seizure and investigation as described by the legislation of NDPS Act. All these
submissions have already been explained in the previous issues. Until the moment, the link
between the jeep and accused has not been established the case of NDPS will find no ground
in this court of law. It is the sole duty of prosecution to establish to prove the guilt beyond
reasonable doubt. It is also a settled principle of law that when even an iota of doubt is
present the accused is given the benefit of doubt. Our this argument is relied and backed by
section 35 of NDPS Act which talks about presumption of culpable mental state-

Section 35 NDPS35-

1) In any prosecution for an offence under this Act which requires a culpable mental state of
the accused, the Court shall presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such mental state with respect to the
act charged as an offence in that prosecution. (Explanation. In this section culpable mental
state includes intention, motive knowledge of a fact and belief in, or reason to believe, a
fact).

(2) For the purpose of this section, a fact is said to be proved only when the court believes it
to exist beyond a reasonable doubt and not merely when its existence is established by a
preponderance of probability.

(¶ 44.) The sub section 2 of the above act clearly denotes that preponderance of probability
vitiates the prosecution’s case. Similarly, in the case of Sobha Hymavathi Devi V. Setti
Gangadhara Swami36 the Aex Court held in the cases of NDPS the presumption is rebuttable
if there is any such circumstances weakening such presumption, it cannot be ignored by the
court. In the present case everything rights from the search, seizure and investigation
everything has been kept on par the provisions of law has been played upon and on every
point a reasonable doubt is made out. Unless and until the prosecution establishes the case by

35
Narcotic Drugs and Psychotropic Substances Act, 1985, § 35, Acts of Parliament, 1985 (India).

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]
36
Sobha Hymavathi Devi v. Setti Gangadhara Swami, 2005 SCC 244.

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MEMORANDUM for PETITIONER [ARGUMENTS ADVANCED]

settling out all the reasonable doubts a case under this section cannot be made out. A witness
also has an important role to play in this case. Where the search was done in a public place
and it could be very easily presumed the presence of many eye witnesses who could actually
testify that the drugs has been actually recovered from the jeep belonging to Mr. Phoolchand.

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MEMORANDUM for PETITIONER [PRAYER]

PRAYER

IN LIGHT OF THE FACTS STATED, ARGUMENTS ADVANCED AND AUTHORITIES

CITED, THE PETITIONER HUMBLY PRAYS BEFORE THIS HON’BLE TO ADJUDGE
AND DECLARE THAT:

1 The accused is not liable under section 302 and 307 of Indian Penal Code, 1860 but
maybe made liable under section 304A of Indian Penal Code, 1860 and hence, the
charges shall be altered accordingly.

2 Both the accused are not liable under section 8(c) r/w 18(c) of Narcotic Drugs and
Psychotropic Substances Act, 1985 and hence, the charges under this section shall
be quashed.

AND/OR

Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in
the interests of justice, equity and good conscience.

For this act of kindness, the Petitioner, as in duty bound, shall humbly pray

PLACE:

DATE:

S/D-

COUNSEL for THE PETITIONER

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